Wakilii

Noble Builders (U) Limited and Another v Jabal Singh Sandhu (Civil Application No. 15 of 2002)

Supreme Court · [2004] UGSC 60 · 2004 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by a notice of motion for further security for costs and security for past costs pending a civil appeal
Decision
Application for further security for costs allowed; respondent ordered to deposit shs.40,000,000 within thirty days

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On an application under r.100(3) of the Supreme Court Rules, the court held that security for costs in civil appeals is the norm rather than the exception, with the burden on the applicant to show sufficient cause for further security beyond the statutory sum. Inability to pay is not the only ground. The respondent's status as a foreigner ordinarily resident in Canada with no assets in Uganda was a significant factor justifying further security. The respondent failed to lay any foundation showing a Ugandan costs order would be readily enforceable in Canada, and his choice to keep no assets in Uganda aggravated the applicants' fear of non-recovery. The application was allowed and further security of shs.40,000,000 ordered.

Outcome

Application for further security for costs allowed; respondent ordered to deposit shs.40,000,000 within thirty days

Facts

The respondent had petitioned the High Court to wind up the first applicant and declare the second applicant a delinquent director, and obtained judgment. The applicants successfully appealed to the Court of Appeal, which on 20 May 2002 set aside the High Court judgment and awarded them costs of the appeal and of the High Court proceedings. The respondent appealed to the Supreme Court (Civil Appeal No. 13 of 2002), which had not yet been heard. The applicants' taxed costs in the lower courts totalled shs.34,164,400, with further costs expected on the pending appeal. The applicants sought further security for costs on the grounds that the respondent was a foreigner resident in Canada with no property or investments in Uganda, that his appeal had no likelihood of success, and that it was in the interests of justice. The respondent did not expressly deny residing in Canada or lacking assets in Uganda, and asserted he was able and willing to pay but preferred to put his money to profitable use.

Issues

  1. Whether the applicants showed sufficient cause for the court to order the respondent to furnish further security for costs over and above the statutory amount fixed by the rules.
  2. Whether the respondent's status as a foreigner ordinarily resident outside the jurisdiction with no assets in Uganda justified an order for further security for costs.
  3. Whether the availability of enforcement of a Ugandan costs order in Canada under the Judgments Extension Act and the Reciprocal Enforcement of Judgments Act removed the need for further security.

Orders

  • Application allowed.
  • Respondent to give further security for costs of the appeal and for payment of past costs by depositing in court shs.40,000,000 within thirty days of the ruling.
  • Applicants to have the costs of the application.

Rules and key headnotes

Civil Procedure — Security for Costs — General Principle in Civil Appeals
The general principle is that an appellant should provide security for costs of an appeal unless the court exempts him on account of inability to pay; security for costs in civil appeals is the norm rather than the exception.
Civil Procedure — Security for Costs — Further Security — Burden and Discretion
The burden lies on the applicant to show sufficient cause why an appellant should furnish further security for costs over and above the amount fixed by the rules, and what amounts to sufficient cause is a matter for the court's discretion depending on the circumstances of the case.
Civil Procedure — Security for Costs — Ground of Inability to Pay
Inability to pay per se is not the only ground for ordering security for costs; an order may be justified on other grounds even where the party against whom it is sought is able to pay.
Civil Procedure — Security for Costs — Foreign Party Resident Outside Jurisdiction
Where a party is a foreigner ordinarily resident outside the court's jurisdiction with no assets within the country available for attachment, that is a significant factor lending weight to the opposing party's fear of being unable to recover costs and supporting an order for further security.
Civil Procedure — Security for Costs — Enforcement of Judgment Abroad as a Defence
A party resisting security for costs on the basis that a costs order could be enforced abroad must lay a proper foundation by showing that judgments of the local court are in fact enforceable in that foreign country without difficulty; bare reliance on reciprocal enforcement statutes, without evidence that they have been extended to that country, is insufficient.

Legislation cited (5)

  • Supreme Court Rules 1996 r.100
  • Supreme Court Rules 1996 r.100(3)
  • Supreme Court Rules 1996 r.108
  • Judgments Extension Act (Cap.12)
  • Reciprocal Enforcement of Judgments Act (Cap.21)

Cases cited (5)

  • Atul Kumar Patel v American International Banking Corp (Civil Application No. 9 of 1989)
  • Uganda Commercial Bank v Multi Constructors Ltd (Civil Appeal No. 29 of 1994)
  • Bank of Uganda v Joseph Nsereko & Others (Civil Application No. 7 of 2002)
  • Porzelack KG v Porzelack (UK) Ltd [1987] 1 All ER 1074
  • De Bry v Fitzgerald and another [1990] 1 All ER 560

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Noble Builders (U) Limited and Another v Jabal Singh Sandhu (Civil Application No. 15 of 2002) [2004] UGSC 60 (4 March 2004)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.